Category Archives: e-Evidence Insights

e-Evidence Insights: Mars Needs Moms; But Science Needs Humans

TWINS_320

"It's an inexact science."  We've heard that phrase often.  But, how often have we heard it in reference to DNA?  Usually, we hear it more in terms of how it identifies a particular suspect with astronomically-high odds, such as, 'one-in-a-million'.  In other words, it must be him because mathematically, it couldn't possibly be anyone else.

Consider the very bad luck of our suspect in today's story:

 

  • A murder was committed.
  • The suspect's DNA was found on tape used to gag the victim.
  • Based on this evidence, he was promptly arrested.

Now, factor in the very good luck of our suspect in today's story:

  • He had an alibi.
  • He was able to prove it beyond all doubt (i.e, it wasn't his mother claiming that he'd been with her the entire time – he was in a hospital).

In fact, he was nowhere near the scene at the time of the murder; nor was he ever at the scene.  Yet, he spent five months in jail before he was eventually exonerated.

This appears to be a bizarre case of transference.

Furthermore, DNA is not necessarily like snowflakes; sometimes, two samples are identical (at least within the range that law-enforcement would feel comfortable arresting and prosecuting a suspect).

The moral of this story?  We rely on science; but sometimes, science must also rely on us.

I Never Promised You a (Dusty)Rose Garden…

Artificial-Sweeteners
…but I did promise to try to post more often.  Isn't it a shame when work gets in the way of a good blog post?  Having not posted anything this week, I wanted to let you know about two subjects I'm working on for you right now:

  1. Due to all of the controversy over Google's privacy policy, I'm writing an instructive article about alternate software products you may use to sync email, contacts and calendar on all of your devices; including desktops, laptops, tablets and smartphones.  And here's the best part – you can do it free (for power users who want more robust features, I'll also include some pay options).  I don't know about you, but being able to create emails, calendar appointments and/or modify contacts – then having the device automatically propagate the data to all of my other devices simultaneously – is one of life's greatest time-savers!  Here's another bonus, that should appeal to many of you – you'll have a database that lives on your own device, not just via access in the cloud.  Yes, there will be pictures, in fact, I've been playing with an excellent app that creates terrific images from a non-rooted Android smartphone.  Stay tuned…
  2. I'm also working on a comparison of scientific analyses in California courts versus other jurisdictions.  I'd seen a few good articles floating around about using the Daubert analysis to support the implementation of predictive coding.  Well, that's not going to help in the Golden State, where we follow the Kelly-Frye standard (aka the 'Kelly' standard).  I'd had a lot of exposure to this during my days at the Los Angeles County District Attorney's Office.  Ask me, sometime, about how my boss and I successfully used a "Sweet'N Low" packet to impeach the defense's scientific evidence in a criminal case, once.  I suppose today, we would have called it the Splenda Gambit…

I won't post until I have the time to do the quality job you expect, so look for them a little ways down the road.  In the meantime, enjoy your weekend!

e-Evidence Insights: Social Media Doesn’t Distinguish Between Good and Bad Riots

Rockem_Sockem_Robots In the "Be careful what you wish for!" category, first we had the Arab Spring, which was considered to be a positive development for the Middle East – in the West, anyway.  Now we have the UK riots – and the reaction is entirely the opposite.

With the Arab Spring, social media was hailed as a catalyst to facilitate needed change.  And with the UK riots?  Social media is being disparaged as – you guessed it – a catalyst to facilitate anarchy.

That's the problem with revolutions; perspective is skewed based on which side of them you're on.

What's more interesting to me is the difference between the vehicles of change.  With the Arab Spring, it was Facebook, Twitter and YouTube.  With the UK riots, it's Blackberry Messenger (as if Blackberry doesn't have enough public-relations issues right now, including losing yours truly as a customer).

What's driving this decision?  Economics, for one (Blackberries are cheaper in that region) and secrecy (BBM is private).  I don't want to belabor the point – people died in both riots – but we should endeavor to understand these issues.

If this were happening in the United States, we'd be arguing whether this was a Constitutional violation of the Brandenburg standard.  And while we argued, the FBI would be accumulating electronic evidence.

You may consider yourself to be on the 'right' side of the revolution, but make no mistake; either way, someone is tracking you.  This will make a big difference if, in the end, you find yourself on the 'wrong' side.

e-Evidence Insights: Casey Anthony & the #eDiscovery Connection

MP900423019 The last thing I want to do is harp on the Casey Anthony trial; more than is necessary to make my point, anyway.  I only want to discuss one item; the verdict.  Is there an eDiscovery connection?  Yes, if you look at cases holistically and not by their parts.  I see people get so wrapped up in the minutia of what we do, they forget that ultimately, this thing may go to trial!

Why's this important?  Because you can be very successful at the eDiscovery portion – and still lose.  If this case proved anything, it's that anyone who thinks they can handicap a jury is smoking crack.  That goes for you, too, Nancy Grace!

One thing that always adds a wild-card to the deliberations – and this was clearly cited in one of the juror interviews – when the element of it being a capital case is added to the mix, individuals are reticent to be the ones to sign the death warrant, even if they're absolutely certain of guilt (and they weren't even close, here).

It's still a marathon to the finish line, but always bear in mind, eDiscovery is just a single watering-station.

e-Evidence Insights: Key Card ‘Chief’ in IMF Rape Prosecution

MP900431773 When one thinks about acquiring forensic evidence in relation to a criminal rape charge, I doubt electronic evidence would normally be on the list of items sought.  However, a hotel key card is likely to figure prominently in the prosecution of the now-former-IMF Chief, Dominique Strauss-Kahn.  Is the theory set forth by the information gleaned from the key card likely to be convoluted?  It seems likely, however, this serves as an appropriate reminder that eDiscovery is not just about civil cases.

e-Evidence Insights: bin Laden’s Secret Weapon: Cut & Paste

MP900423113 Yes…I'm still here…and I'm about to clear out that backlog of interesting items I mentioned a few posts back.  Funny how Osama bin Laden has already moved to the back pages – unless you're interested in 'his' porn collection.

If we learned one thing from 9/11, it was that we should cast a large net, but the webbing must be finite – lest the minnows pass through.  For our purposes, 'minnow' is a metaphor for 'analog'.  We expected machine guns…instead, we got box cutters.  We expected a sophisticated digital network of operatives…instead, we got bin Laden writing up some text, copying it onto a flash drive, then a courier cutting & pasting it into an email message at a remote location.

Just something to keep in mind the next time you're collecting digital evidence.  Don't jump the shark while overlooking the minnow.

e-Evidence Insights: A Good Senator, Spoliated.

…with deference to Mark Twain…

MP900400181 Recently-former-Senator John Ensign's (R-NV) affair and alleged attempts to cover it up would normally be fodder for the press – and I'd take little notice of it.  However, with the release of the Senate Ethics Committee Panel report, we find this:

"The report also accuses Ensign of deleting documents and files the committee was likely to request. The senator deleted the contents of a personal email account after the investigation was launched, it says." [italics added]

And this:

"The committee's report describes Cynthia Hampton as running up $1,000 in phone bills by texting Ensign while he was traveling in Iraq with a congressional delegation."

I want to distinguish between the first quote and the second.  The former is clearly in the realm of relevance (save for an attempted-but-likely-futile privilege argument against access to his personal email account), but the latter is an example of how 'beside-the-point' ESI becomes relevant.  The affair may be morally wrong, but texts between the two players are private – or at least they would be, except for the likelihood that access to them might lead to relevant evidence that would tend to prove or disprove a material fact.  Examples?  Did they conspire to cover up the affair through means that would be deemed improper?  Plus, who paid the phone bill?

This is how your personal cell, PDA or email account ends up in the hands of your adversaries.  You're not immune.

What do you think the odds are that Sen. Ensign knew, or should have known that destroying evidence after learning of an investigation is at best sanctionable conduct and at worst, a crime?

This is how destruction turns into obstruction.  Time to call "Aunt Judy"…or Judge Judy…

e-Evidence Insights: From Innocuous to Probative

MP900401435 If you'll forgive me my lack of time today,  I'd like to link you to a New York Times examination of the case, Skyhook Wireless v. Google (or as I like to call it, the "Jabbar" case).  The reason I'm singling this out is, if you follow the story, you'll see a great example of how seemingly innocuous statements contained in email messages, laid end-to-end, balloon into something much bigger.

Oh, and if somebody sends you an email – and you feel it would be more appropriate to continue the discussion off-line – walk by their office (if possible) or pick up the phone.  Don't email them back, "PLEASE DO NOT! Thread-kill and talk to me off-line with any questions".

If I saw that in document review, where do you think I'd start digging?

e-Evidence Insights: The Manchurian Blawgger

MP900439375 I've just been informed – by someone who I refuse to reveal – that Donald Trump has dispatched a team of private detectives to California to examine my birth records.  Worse, I'm told he can't believe what he's finding!  So, even I know when the jig is up.  It's time for me to come clean.  I'm a Canadian-based plant, sent here to infiltrate your society.  The election going on up North yesterday?  I did that (I also pre-determined the outcome).  You're a fan of bacon, maple syrup and you say 'eh?' a little too much?  It's not Vermont – and you're not hard of hearing.  It's me. 

I know I've told you I'm an American citizen, but how can that be possible under the following facts?

  1. I was born in Northern California.
  2. Both, not just one, of my parents is/was a citizen of Canada and neither is/was a dual-citizen.
  3. The first three digits of my social security number were issued from a state in which I've neither set foot, nor ever had a mailing address.
  4. Furthermore, I wasn't even living in the United States when I legally-procured my social security number.
  5. I didn't have a copy of my birth certificate, so I wrote to the State of California to request one – and was sent a short-form "Certified Abstract of Birth", which I then used to request my social security number.
  6. No religion or hospital information is listed on the short-form.

Yet, these are the additional facts:  I am an American citizen.  I have a valid social security number.  And – what makes my mother most proud – I can be President of the United States; notwithstanding the pesky requirement that I must somehow convince people to vote for me.

Why do I bring this up?  Because the juror at your next trial might be a birther or a truther.  And before anybody takes offense, I'm using those terms in their broad sense; just as many people were willing to believe that George W. Bush had advance knowledge of the 9/11 attacks.  Quite an interesting time to be discussing it with the recent death of bin Laden.

This is a mindset; conclusion-based thinking.  Like it or not, pre-conceived bias affects judgment.  "I've decided what I want to believe, now I'll allow in all facts in support of that belief while filtering out all those that oppose it".

Do you think that might be why, in a jury trial, attorneys concentrate on demonizing an opponent through hearsay and innuendo?  Oh sure, the opposition objects, but once the jury has heard it, it's too late.  They're already deciding whether it's plausible.  The attorney knows that if he or she succeeds, they've accomplished the following goal:

Filter / On

At least that's what somebody told me…